You have enquired as to whether you are entitled to SMP if your contract is not renewed. ...read more
I am pregnant and going on maternity leave in early July. I work in local government and my department will be going through a restructure starting in July and the current roles will come to an end in April 2018. I’ve been told that I will have to apply for posts and attend interviews in my team even though it is likely to be very early in my maternity leave. I’ve spoken to the union and HR and they’ve said that I have to apply and state my availability for interviews and I would have to attend or do a phone interview from two weeks after the birth. Otherwise I am putting myself at risk. I don’t feel I would be able to do this and so would like to see what jobs are available on redeployment closer to my return date and if there is nothing suitable take redundancy. Can you let me know where I stand with this as the advice I have been given has been confusing and contradictory and I obviously don’t want to create extra stress at such an important time in my life.
Generally speaking, after maternity leave, you have the right to return to the same job that you were doing before you left. However, special provisions apply when during your maternity leave, it is not practicable by reason of redundancy for you to return to that job. In these circumstances you are entitled to be offered any suitable alternative employment with your employer, with priority over other employees who are also affected.
I understand from your question that you have been told that you will need to apply for the posts. Whether or not you should automatically be offered one of these positions depends of whether the available vacancies are classed as a suitable alternatives. To advise you fully on your situation we would need more information on your current role and the proposed roles in the new structure. The terms and conditions relevant to the new role must, however, not be substantially less favourable than if you had continued to do the job you are currently doing prior to going on maternity leave.
Please also bear in mind that suitable alternative employment involves consideration of elements such as pay, location, status etc. If you were dismissed by reason of redundancy and the conditions are not met then the dismissal would be automatically unfair.
I note that you do not wish to attend the forthcoming ‘interviews’ you mentioned in your question and wish to see what roles are available closer to your return date. However, if any role offered to you was regarded as suitable alternative employment and you unreasonably refused it, you would lose your right to any redundancy payment due to you. If there is no suitable alternative vacancy available, then your employment would be regarded as terminated by reason of redundancy and your dismissal would be for that reason.
I further note that your employer wants you to attend an interview/undertake a phone interview from two weeks after you give birth. In practice, most employers with employees on maternity leave during a redundancy programme will engage in specific consultation with those employees in addition to, or in conjunction with, “normal” redundancy consultation, and will discuss suitable alternative employment with the employee, together with other alternatives to redundancy. Where a suitable alternative vacancy is identified, it should be offered to you.
Your employer has a duty to make reasonable contact with you whilst you are on maternity leave. If your employer failed to adequately consult with you because you were on maternity leave then you may have grounds to claim pregnancy and maternity discrimination. This is still the case where employers do not consult as they have concerns not to worry or disturb the employee during this time. For that reason I would advise that you try and agree the least intrusive and least stressful method of keeping in touch with your employer before you go on maternity leave.
Please note that any claim for maternity discrimination or unfair dismissal must be brought in the employment tribunal within three months of the discriminatory act/dismissal and the Acas pre-conciliation procedures must also be complied with.
Should you require any further clarification regarding the above issues then please contact Tracey Guest at Slater Heelis LLP on 0161 672 1246.
*Helen Frankland assisted with this answer.